John Maroon Trucking Service

National Labor Relations Board - Board Decisions

Dec 17, 1965

156 N.L.R.B. 87 (N.L.R.B. 1965)

JOHN MAROON TRUCKING SERVICE 87
Upon the entire record in this case, we find that the following
employees of the Employer constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act: All production and maintenance employees at the Employ-
er's Hammonds Ferry Road plant at Baltimore, Maryland, including
truckdrivers, plant and production clericals, shipping and receiving
clerks, laboratory employees, leadmen and leadwomen, but excluding
office clericals, professional employees, guards, and supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication.]
John Maroon Trucking Service and Lawrence S. Tate . Case No.
14-CA-3492. December 17,1965
DECISION AND ORDER
On September 27, 1965, Trial Examiner Wellington A. Gillis issued
his Decision in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision and
a supporting brief, and the Respondent filed a brief in answer to the
General Counsel's brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Decision, the excep-
tions, and the briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
modifications.
We find, in agreement with the Trial Examiner, that the General
Counsel has failed to prove by a preponderance of the evidence that
the Respondent refused to reemploy Lawrence Tate because he engaged
in protected concerted activity or because he filed a charge with the
Board; or that the Respondent refused to reemploy Roy Clark because
he engaged in protected concerted activity. We do not, however, agree
with the Trial Examiner's conclusion that Clark's on-the-job protest
156 NLRB No. 13.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not a protected activity. Nor do we deem it necessary to pass
upon the Trial Examiner's statements in his section entitled "Analysis
and Conclusions," to the extent that they imply that an employer may
assert "a contract right" to refuse to employ an individual because
of such individual's protected concerted activity, or that an individ-
ual's motive in filing an unfair labor practice charge with the Board
is an issue in any Board proceeding which ensues, as such matters are
in any event irrelevant herein. The issue in this case is the reason for
the Respondent's refusal to reemploy Tate and Clark; as we have
found, in agreement with the Trial Examiner, that the record fails to
establish. that the Respondent's reason was an unlawful one, we shall
dismiss the complaint.
[The Board adopted the Trial Examiner's Recommended Order
dismissing the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on October 28, 1964, by Lawrence S. Tate, an individual, the
General Counsel for the National Labor Relations Board, hereinafter referred to as
the Board, issued a complaint and an amended complaint on December 14, 1964, and
January 12, 1965, respectively, against John Maroon Trucking Service, hereinafter
referred to as the Respondent or the Company, alleging violations of Section 8(a) (3)
and (1 ) and Section 2(6) and (7) of the National Labor Relations Act, as amended
(61 Stat . 136), hereinafter referred to as the Act. The Respondent thereafter filed a
timely answer to the complaint denying the commission of any unfair labor practices.
On January 25,-1965, pursuant to notice , a hearing was held in Salem, Illinois,
before Trial Examiner Wellington A. Gillis, at which all parties were represented by
counsel and were afforded full opportunity to be heard, to examine and cross -examine
,witnesses , and to introduce evidence pertinent to the issues . At the hearing, based
upon an amended charge having been filed by the Charging Party on January 13, 1965,
the General Counsel's motion to further amend the complaint to allege a Section
.8(a)(4) violation was granted without objection. Subsequent to the close of the
hearing a timely "Memorandum " was filed by Counsel for the General Counsel.
Upon the entire record in this case , and from my observation of the witnesses and
their demeanor on the witness stand, and upon substantial, reliable evidence "con-
sidered along with the consistency and inherent probability of testimony" ( Universal
Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OP THE RESPONDENT
The Respondent maintains its office and principal place of business in Centralia,
Illinois, where it is engaged in the trucking and excavating business. The Respondent,
in the course of such operations, annually receives at its Illinois operation , goods and
materials valued in excess of $50 , 000 directly or indirectly from points located outside
the State of Illinois . In the course of its business , the Respondent also furnishes
annually services valued in excess of $50,000 to several large Illinois corporations,
each of whom is engaged in operations or annually performs services of significant
dollar proportions outside the State of Illinois. The parties stipulated , and I find, that
.the Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
The parties admit , and I find, that International Hod Carriers ', Building and Com-
mon Laborers ' Union of America, AFL-CIO, Local No. 19, hereinafter referred to
as the Union or Local 19 , is a labor organization within the meaning of Section 2(5)
of the Act.
JOHN MAROON TRUCKING SERVICE
III. THE ALLEGED UNFAIR LABOR PRACTICES
89
A. The issues
Whether the Respondent refused to reemploy laborers Roy Clark and Lawrence
Tate on its North End sewer line construction project when, after a the 3-week shut-
down, work resumed on November 5, 1964,1 and, if so, whether such refusal, in the
case of Clark, was based upon Clark's earlier on-the-job protest to John Maroon,
owner of the Respondent, that Maroon was performing Laborers' work, and, in the
case of Tate, was predicated upon the fact that he had filed an unfair labor practice
charge the week before.
B. The facts
1. Prefatory statement
The Respondent and Local 19 have at all times material to the issues in this case
maintained a contractual relationship covering "all building construction labor within
the city limits of Centralia , Illinois, and such additional area as Local 19 normally
services." Pursuant to the terms of the existing union shop and nondiscriminatory
exclusive referral contract , the Union maintains and operates a hiring hall, under
which the Respondent requests, and the Union refers, laborers as needed.2 The con-
tract reserves to the Respondent the right to accept or reject applicants referred by
Local 19, but prohibits the Respondent from hiring personnel on the job without the
Union's approval. Thus, it is provided in article I, section 3, that:
(2) The Employer shall request the Union to refer applicants as required and
shall not solicit applicants directly and shall not in any manner circumvent the
Union in the recruitment of applicants for employment.
(6) The Employer reserves and shall have the right to accept or reject, to
employ or not to employ, any persons furnished by the Union, or to discharge
for cause any employee who has been accepted but who subsequently proves
unsatisfactory to the Employer.
The hiring hall referral system operated by Local 19 is based upon the utilization of
two files, one called a "working list" and the other an eligibility or "non-working list." 3
The "working list" is made up on the names of all registered laborers who have been
referred to jobs and are either actually engaged in work or, because the job to which
they had been referred has halted temporarily, they have an expectancy of being called
back to their work.4 The "non-working list" is comprised of the names of registered
laborers who are out of work and are waiting to be referred to a new job. Laborers
who are laid off at the termination of their work assignment apprise the union hall of
such fact, and their application sheets are then taken from the "working list" and
.placed at the bottom of the "non-working list." Thus, as calls from employers come
in requesting laborers, the job openings are filled by referring men from the top of the
"non-working list." However, to be referred a person must be present and available
in the union hall at the time of a job opening, and, if the top man with priority is not
present, the next person on the list who is present in the hall is referred out, and
.the application sheet of the absent "top" man is then placed at the bottom of the
"non-working list." If a call comes in for a laborer, however, and no "non-working
list" people are in the hall, a "working list" man, who, while waiting for his own job
to reopen, happens to be in the hall, may be sent out. .
1 Unless otherwise set forth, all dates refer to 1964.
2 Notwithstanding an affirmative statement contained In the Respondent's answer which
alludes to the employment of "union members" furnished by the Union " in accordance
with the regular and usual hiring practices of the Union," legality of the hiring hall prac-
tice was neither challenged in the complaint nor litigated at the hearing and, accordingly,
is not in issue in this proceeding.
3 These lists are not , in fact, lists , but rather are piles of work applications stacked
one on top of the other and kept in two filing cabinet drawers. For clarity purposes,
however, they will be referred to herein as lists.
4In other words, as far as the Union Is concerned , all laborers on the "working list"
at any given time are considered to be employed and therefore , with one exception here-
inafter noted, are not eligible to be referred to a new job. In this connection, however,
a laborer who chooses to remain on the Union ' s "working list" after the job to which
he was referred is temporarily shut down, has the right to return to 'his job with that
employer when the particular work or job on which he previously was employed again
opens up.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The alleged unlawful conduct
During the fall months of October through January 5, 1965, the Respondent, per-
forming under a subcontract with Millstone Construction Company, was engaged in
the laying of sewer and water lines on the outskirts of Centralia . On Wednesday
morning, October 7 , in connection with the sewer line being constructed to the Seigler
plant, John Maroon , owner of the Respondent , called Lee Hiltibidal , business repre-
sentative for Local 19, told him that he was ready to start at the north end, and asked
for two laborers, pursuant to which request the Union referred employees Howard
Queen and Tom Campbell . At noon on this date , pursuant to Maroon 's request of
Hiltibidal , Roy Clark , one of the alleged discriminatees , was also sent to the north end
project. On the following day, Thursday, October 8, presumably at Maroon's request
for an additional laborer, Lawrence Tate, the Charging Party and the other alleged
discriminatee , was referred to the north end project.5
The record reveals that all four of these laborers worked for the Respondent on
October 8 - and 9, and that , during the following week , when there appears to have
been employment for but two of Local 19's referrals, only Queen and Campbell
worked the jobs Thereafter, while waiting for a right-of-way clearance, the job was
shut down and did not reopen until November 5.
Sometime during the day on October 8, Maroon and Clark became involved in an
argument concerning the setting of batter boards, work to which Clark had been
assigned and on which Maroon , himself , also was engaged . On this occasion, Clark
challenged Maroon concerning the latter's right to perform the work, and, as testified
to by Clark, "I told him to lay off our work, that if we was shorthanded, that if he
needed any more men to go to our hall and get them. Clark further testified that
Maroon replied that "he wasn 't going to get any more, that he had enough out there,
that he wasn't going to quit doing that work, that he didn't have anybody out there
that knew what they were doing and somebody had to do the work." Maroon, taking
the position that one man was all that was needed but that Clark was not doing the
work properly, testified that "Mr. Clark didn't seem to know what he was doing, and
we talked about it and he wanted me to put on another laborer and I told him, 'no.'
I said, 'This is a one-man job.' So I helped him set those batter boards that day to see
that they were right because I didn't want to come down, go down to the next man-
hole, maybe six inches low or six inches high, and I helped him check those batter
boards."
Early the following morning, October 9, after Clark had apprised Hiltibidal of the
matter, Hiltibidal and William Huebner, Local 19's secretary, went out to the jobsite
where Hiltibidal encountered Maroon . During the course of an argument between
the two, Maroon admitted , in answer to Hiltibidal 's inquiry , that he had been assisting
Clark in setting batter boards. As testified to by Huebner, Maroon replied that "in
an attempt to get the job started right that he was setting batter boards and trying to
line the job up." Maroon further stated , according to Hiltibidal , that Clark did not
know how to do anything on the job, and , in reply to Hiltibidal 's request that Maroon
refrain from further performing this work , Maroon answered that "he was going to
continue until the job got straightened out." 7
5 It would appear that these men, Queen , Campbell , Clark, and Tate, were referred in
that order on the basis of their respective positions at the top of the "non-working list."
6 On Thursday and Friday , October 15 and 16 , of this week , when the need for addi-
tional laborers arose , and again when the job reopened in November , the Respondent,
confronted with work jurisdictional claims of Laborers ' Local 581 , with whom the Re-
spondent also has an exclusive hiring hall contract , employed two referrals from Local
581. As will be noted hereinafter , although the Respondent 's action in employing the
two Local 581 men on October 15 appears to have been the real basis for the complaints
of Clark and Tate against the Respondent , the work jurisdictional dispute between Local
19 and Local 581 is in no way made an issue in this proceeding , nor is the Respondent's
action in capitulating to Local 581 ' s ultimatum to put on its men alleged as a violation
or asserted by the General Counsel in support of the Section 8(a) (3) and ( 4) violations
as to Clark and Tate, respectively.
In addition to Huebner and Hiltibidal ' s testimony , the testimony of Clark , who, at
some point , entered into the conversation , and Maroon , reflects that , on this occasion,
Maroon made known his feelings concerning Clark's inability to perform the work. Thus,
Clark testified that Maroon stated that he had been performing the work "because I
didn't have anybody out there who knew how to lay batter boards or lay tile," and
Maroon testified that, in reply to Hiltibilal 's question as to why he was doing Laborer's
work, he told Hiltibidal that "the man you sent me don't know how to do it."
JOHN MAROON TRUCKING SERVICE 91
According to the further testimony of Hiltibidal, at some point in the argument,
Maroon told Hiltibidal "that he didn't want Clark dispatched there because Clark was
a troublemaker." Maroon also told Hiltibidal that "Tate is no good," and that "I
don't want either one on the job." Maroon, on the verge of letting Clark go, bowed to
Hiltibidal's suggestion that he not fire him. After the conversation was concluded
and Hiltibidal and Huebner had left, Maroon continued to assist Clark in setting
batter boards until Maroon put Queen on the job. Queen, according to Maroon,
proved himself capable, and for the remainder of the job performed by himself the
work of setting batter boards.
Thereafter, on November 5, the right-of-way having been obtained, the project
resumed. According to the testimony of .Hiltibidal, Maroon called him at 7 a.m. on
November 4, "or thereabouts," and informed him that he was going to start the
north end project again, and requested two men. Hiltibidal told Maroon that, accord-
ing to their agreement, all four boys (referring to Queen, Campbell, Clark, and Tate)
were eligible to go back on the job, to which Maroon replied that he would not hire
Roy Clark or Tate.8 Thus, in filling Maroon's two referral requests for November 5,
Hiltibidal decided to send Queen, who had top priority for the job, and Otto Metcalf,
who was the top man eligible for referral on the Union's "non-working" list .9
Queen and Metcalf, along with two laborers from Local 581, worked on the
north end project off and on during the month of November.10 No work was per-
formed on the north end project during the month of December until the 28th, at
which time Metcalf and Queen returned and worked from December 28 through
January 4 and 5, 1965, respectively, which was the last day that any work was done
by the Respondent on the north end project.
Thus, from the November 5 reopening of the Respondent's north end project
through its apparent completion on January 5, 1965, Maroon had need for but two
of Local 19's laborers; Queen, who worked a total of 14 full and 2 partial days, and
Metcalf, who worked 11 full and 2 partial days. During this period no further
referrals for the north end project were requested, and, accordingly, neither Clark
nor Tate, nor anyone else, was subsequently referred to, or employed by, Maroon
on his north end project. However, and notwithstanding the fact that under the
Union's hiring hall referral system, by voluntarily retaining their names on the
"working list" until the middle of January 1965, Clark and Tate made themselves
s Iiltibidal testified that when he asked Maroon for his reason, Maroon stated that
"Clark is a loudmouth and a troublemaker," and also that "Tate has got me fouled up
with the National Labor Relations Board, I will not have him on my job." Maroon, who
testified that be did not call or talk with Hiltibidal about the resumption of work, either
before or on November 5, and that it was solely through his call to Campbell that the
Union was put on notice as to his need for calling back two former employees, testified
that on November 6 (the day after Maroon assumed work), he (Maroon), in need of a
couple of men for a different job not here involved, talked with Iiltibidal and told him
"I didn't want Clark and I didn't want Tate because they weren't good help" and also
stated, "Now they've got me messed up with the Labor Board." In resolving this testi-
monial conflict, I must state that neither Hiltibidal nor Maroon impressed me as com-
pletely credible in giving testimony. Hiltibidal appeared confused on many points,
including dates and his operation of the hiring hall, and changed his testimony many
times, while Maroon, also hazy on a number of matters, repudiated a portion of his
pretrial affidavit given to the Board agent on November 6 by testifying that he did not
call Hiltibidal for men when the job opened on November 5. In view of the seriousness
of such repudiation by Maroon, I find, as testified to by Hiltibidal, that Maroon did make
a request on November 4 for two men, but also find, in view of Hiltibidal's later testi-
mony that the reason why Maroon would not hire Clark or Tate on November 5 was
"because he (Maroon) told me for the simple reason that they wouldn't work," that
Maroon's version of his statements to Hiltibidal concerning Clark and Tate, which I
credit, is the more accurate of the two.
9 Campbell, who would have had second priority for the job over either Clark or Tate,
had the day before removed himself from Local 19's hiring hall in favor of the Iron
Workers. Oddly enough had Campbell not made this move and had been available for
referral on this date, in view of the fact that no further job openings on Respondent's
north end project were at any time thereafter forthcoming, it would appear that this
entire matter would not have arisen.
10 The records disclose that the four employees worked at least a portion of 8 days
through November 18, and that Queen worked an additional day during this period and
again on November 23, which was the last day that any work was performed on the
north end project in November. All four laborers were transferred by the Respondent
to other projects during the remainder of the month.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eligible only for referral back to the Respondent's north end project (in the event
that additional men were needed), Tate was accepted by Maroon on a different proj-
ect commencing on November 24, when, in response to a request for two men,
Hiltibidal sent Tate and his father, Ivan Tate.11
Analysis and Conclusions
The General Counsel contends that on November 5, when work on the project
resumed, Maroon refused to accept the referral of Clark because the latter had
earlier protested Maroon's performing Laborers' work and refused to accept the
referral of Tate on the ground that he had shortly before, on October 28, filed with
the Board an unfair labor practice charge.
The Respondent, in denying these allegations, asserts that it has at no time refused
to employ any man sent out by the Union,- including Clark and Tate; that on
November 5 Queen had top referral priority for one of the two job openings, and
that the decision to send Metcalf rather than either Clark or Tate was made by the
Union and not by the Respondent; and that the Respondent was within its right
under the contract in telling the Union that it did not want Clark or Tate referred.
Prior to treating the contentions raised by the parties, and apart from the merits
of the arguments raised, I feel compelled to state that, in my opinion, the true basis
for the original complaints of the two charging individuals herein, as well as Local
19, is not that they were discriminated against by the Respondent because of any
union activity on their part, but rather, the fact that they were displaced on the
north end job on and after October 15 by two referrals from Local 581. The record
amply demonstrates that a week or so before the occurrence of the incidents alleged
herein as violative of the Act, namely, the refusal to hire on November 5, both of
the alleged discriminatees, as well as Hiltibidal of Local 19, were at odds with
Maroon over his permitting Local 581 to encroach upon Local 19's geographical
territory. Thus, the two identical letters signed by Clark and Tate, dated October 19,
and prepared by Hiltibidal and Huebner at Local 19's offices, and submitted to the
Board's Regional Office, allege as possible violations only the fact that Clark and
Tate had been displaced by Local 581 laborers. Both Clark and Tate, in testifying,
agreed that at that time they had no other grievance or complaint against the
Respondent.12 As in part noted heretofore, it apears that at times material to this
proceeding, there existed an honest dispute as to whether the Respondent's north
end project contractually came within the geographical jurisdiction of Local 19 or
Local 581, and that the Respondent' s decision on or about October 15 to split the
work between referrals from both organizations was arrived at independent of
unlawful motivation concerning Clark or Tate. In any event, and notwithstanding
testimony of Hiltibidal indicating the existence of continued resentment by him
toward Maroon in this regard , the complaint issued by the Regional Office and
the position asserted by the General Counsel in support thereof does not allege the
Respondent 's action in hiring two Local 581 laborers on October 15 and again on
November 5 as unlawful.
Accordingly, and apart from the fact that the grievances of Clark and Tate which
originally motivated them in seeking Board relief do not merit such, we proceed to
the question of whether the Respondent refused to hire Clark and/or Tate on and
after November 5 for unlawful reasons. The crucial and, for the most part, uncon-
troverted facts disclose that, upon reopening the north end project on November 5,
there were but two job openings for Local 19 referrals; Maroon, the day before, had
requested of Hiltibidal that two men be referred; under the existing referral system,
Queen had top priority for one of the two jobs, and was referred; and Hiltibidal,
"Although Hiltibidal's testimony is certainly confusing, if not conflicting, as to whether
on this occasion he referred Tate "to test him (Maroon) out for sure to see if he will
or not" employ Tate, or whether, in Hiltibidal's absence, Tate was sent because, although
on the "working list" and therefore not eligible for any job other than the Respondent's
north end project, "he was the only one available to go," it is clear that Maroon accepted
the referral of Tate on November 24 and that Tate finished the work, to which he was
assigned.
32 The formal unfair labor practice charge filed by Tate on October 28 alleges only that
Tate had been displaced on October 15 by a Local 581 laborer. It should be further,
noted that, notwithstanding the issuance on December 14 of the 8(a) (3) complaint
alleging the November 5 refusal to hire Clark and Tate, the record contains no charge
alleging such refusal or containing an 8(a )( 4) allegation prior to the amended charge.
filed by Tate on January 13, 1965.
JOHN MAROON TRUCKING SERVICE . 93
given to understand by Maroon that he would not accept either Clark or Tate, both
of whom, respectively, were immediately behind Queen in line for filling the vacancy,
sent Metcalf, who was the top man on the "non-working list."
Without attempting to pass upon the question of whether, under different circum-
stances, a union must actually send it man to the jobsite before an employer can be
said to have rejected him, in view of the referral contract provision herein reserving
to the Respondent the right to reject any person furnished by the Union, coupled
with Maroon's specific instructions on November 4 to the effect that he did not want
Clark or Tate, I find without merit, notwithstanding its technical accuracy, the
Respondent's two-fold argument that it at no time actually refused to employ anyone
sent out by the Union, and that the decision to refer Metcalf, rather than either
Clark or Tate, was made by the Union and not by the Respondent. Thus, having
found that the Respondent is estopped to deny that it refused to accept either Clark
or Tate, or that it was responsible for the decision not to refer them, the question
posed by the Respondent's final assertion is whether it was within its right under the
contract in refusing to accept their referral.
In considering the validity of the respective positions of the parties in this regard,
controlling is the fact that Section 8(a)(3) of the Act, as well as the existing refer-
ral contract, permits the Respondent to reject or to refuse to employ any employee
referred by the Union for any reason, so long as the Respondent's motivation is not
based upon union consideration. 13 On the other hand, were the evidence to reveal
that Clark and/or Tate would have been employed on November 5 but for the fact
that they engaged in protected activity, Section 8(a)(3) would prevent the Respond-
ent from relying upon the contract in defense of its position.
The sole basis upon which the General Counsel predicated his allegation concern-
ing Clark is the fact that Clark, on October 8 and 9, protested to Maroon the latter's
performing work on the job. While fully cognizant that under certain circumstances
a proper protest involving work to be performed under a union contract may con-
stitute protected activity under the Act, I am of the opinion, and so find, that under
the circumstances here, Clark's on-the-job protest was not only unjustified but that
his conduct in engaging Maroon in an argument concerning the matter places it
outside the ambit of protected activity. It is evident, not only based upon Maroon's
testimony but on that of Clark and Hiltibidal as well, that Maroon considered Clark
as not capable of performing the assigned work properly, and that his work in set-
ting batter boards was unsatisfactory. In addition, the fact that, even after the
conference with Hiltibidal and apparently with the Union's acquiescence Maroon
continued to assist Clark until Queen subsequently took over the work and finished
the job by himself, supports Maroon's position that he was not, in fact, attempting
to get by with one less referral from Local 19, and that, contrary to Clark's assertion,
one man was all that was necessary to perform the work.14 A finding that, under
these circumstanecs, Maroon is precluded from asserting his contract. right to refuse
the further referral of Clark is, in my'opinion, clearly unwarranted.15-
On the record as a• whole, I am persuaded, and so find, that, based upon Clark's
work performance in early. October, the Respondent justifiably considered Clark an
unsatisfactory employee and for reasons relating thereto refused to accept his sub-
13 In view of the fact that neither the General Counsel's arguments nor the testimony
by the union officials considers the Respondent's action with respect to Clark or Tate a
"discharge" action, but rather, a "refusal to accept the referral" of the alleged dis-
criminatees, for the purposes of this discussion it is presumed that. neither Clark nor
Tate was considered an employee on November 5 (notwithstanding their right to be
referred back to the north end project under the Union's unilateral hiring hall procedure),
and therefore, that the contract's article I, section 3(6), is applicable here only to the
extent that it refers to the Employer's right-to accept or reject persons furnished by the
Union (as distinguished from that portion relating to "discharge for cause").
14 Nor does the record reveal that the alleged ground for Clark's protest to Maroon is
supported by earlier history; for there is no indication that Maroon, in his contract rela-
tions with the Union, had at any time attempted to use less than the number of Local 19
laborers required to do a job by performing work himself, either for the purpose of cutting
labor costs or in order to side step the union hiring hall.
ze To hold otherwise lends itself to the- proposition that, under this type of referral
contract, any referred person whom the employer considers to be incapable of properly
performing the.work, or who for other legitimate reasons may be considered less than
acceptable, may, with or without justification and under the guise of engaging in protected
activity, protect his employment tenure or prevent his termination by merely protesting
the employer's manner of operation under the contract.
94 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
Sequent referral by the Union. According, I find that the General Counsel has
failed to prove by a preponderance of the credible evidence that, in refusing to accept
the referral of Clark on and after November 5, 1964, the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
With-respect to Lawrence Tate,16 whom the General Counsel alleges to have been
unacceptable for referral solely on the ground that he filed an unfair labor practice
charge against the Respondent on October 28,. the evidence reveals that, although
Tate was in no way involved in the "batter board" incident on October 8 and 9,
Maroon, on the latter date, which was several weeks before the October 28 charge
was filed, apprised Hiltibidal of the fact that "Tate is no good" and that he did not
want him on his job. Although, based upon Maroon's statement to Hiltibidal on-
November 4 that he would not hire Tate, Hiltibidal did not refer him for the north
end reopening on November 5, Hiltibidal's referral of Tate 3 weeks later on
November 24 "to test" Maroon was accepted by.the latter without incident.
Although Maroon admitted on the record that one of the reasons that he did not
want Tate was because Tate was known around the country as a troublemaker, which
meant "generally it is petty things like jumping out of the ditch to call the business
agent if I pick up a shovel," the evidence discloses that, like Clark, Maroon consid-
ered Tate to be other than a good worker and, based upon Hiltibidal's admission,
Maroon communicated this to Hiltibidal as a reason for not hiring Tate (as well as
Clark) on November 5. Accordingly, in view of the above, and notwithstanding
Maroon's statement to Hiltibidal which, based upon its context, I believe to have
been but an afterthought, to the effect that "Now they've got me messed up with the
'Labor Board," I find that the General Counsel has failed in its burden of proving
by a preponderance of the credible evidence, that, in refusing to accept the referral
of Lawrence Tate between November 5 and 24, 1964, the Respondent violated Sec-
tion 8 (a) (3) and (4) of the Act.
CONCLUSIONS OF LAW
1. John Maroon Trucking Service is engaged in commerce within the meaning of
Section 2(6) and.(7) of the Act.
2. International Hod Carriers', Building and Common Laborers' Union of Amer-
ica, AFL-CIO, Local 19, is a labor organization within the meaning of Section 2(5)
of the Act.
3. The Respondent has not engaged in any unfair labor practices as alleged in
the complaint. .
RECOMMENDED ORDER
It is hereby recommended that the complaint be dismissed in its entirety.
16 Lawrence Tate, the alleged discriminatee, is more frequently referred to In the record
as Steve Tate, and should not be confused with his father, Ivan Tate.
Millwrights Local Union 1421 , affiliated with United Brotherhood
of Carpenters & Joiners of America , AFL-CIO; L. A. Carter,
Business .Representative [Jervis B. Webb Company of Georgia]
and John H. Davis, Jervis B. Webb Company of Georgia, C. M.
Yeatts, Jr., Earl Cox. Cases Nos. 16-CB-247, 16-CB-9247-2, 16-
CB-247-3, and 16-CB-247-4. December'17,1965
DECISION AND ORDER
On September 14, 1965, Trial Examiner William Seagle issued
his Decision in the above-entitled proceeding, finding that the
Respondents had not engaged in unfair labor practices as alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth . in, the attached Trial Examiner's. Deci-
156 NLRB No. 10.